Student Privacy Rights: In and Out of the Classroom


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Student Privacy Rights: In and Out of the Classroom

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Student Privacy Rights: In and Out of the Classroom

  2. 2. Disclaimer Lawyers
  3. 3. “Students don't shed their constitutional rights at the school house gates."
  4. 4. Central Legal Question We Will Explore: ! How do schools balance students’ constitutional rights with schools’ needs to maintain order and a positive educational environment? ! !
  5. 5. This talk is not about some abstract case studies. This talk is about you.
  6. 6. What We Will Discuss: ! Student Privacy Rights on Campus ! Students’ Use of Social Networks ! Student Records and Privacy ! School Use of Third Party Online Vendors ! Tracking Students ! Public Relations & Privacy Issues ! !
  7. 7. uncharted legal territory Everyday Scenarios with the Internet & Technology
  8. 8. Scenario #1: Asking a student for their social network login credentials.
  9. 9. Not suggested! ! Not only is the case law all over the place, various states are debating legislative proposals to address this issue. ! Additionally, the Terms of Service of sites like Facebook expressly prohibit this activity.
  10. 10. Scenario #2: Using private sector tracking software to monitor students.
  11. 11. Ask yourself the questions: ! Why and How are you using these monitoring tools?
  12. 12. DOE & SIIA Issued Guidance ! 1) Legal Awareness: Be aware of the relevant state and federal laws ! 2) Inventory of Services: Identify all the educational services being used to assess the range of student information being shared ! 3) Approval Policies: Important that staff do not bypass internal controls when deciding to use free online services, and those should go through the same approval process as paid services ! 4) Insert Contract Provisions: Detail policies for data use, retention, and destruction ! 5) Transparency: Let students and parents know what is going on
  13. 13. Scenario #3: Using RFID - Radio Frequency Identification Technology
  14. 14. Not suggested! ! Tracking students in this manner can be costly, hard to manage and intrusive. ! It can also be a public relations nightmare.
  15. 15. Scenario #4: Accessing Photos or Information from a Device Such as a Cell or Smartphone.
  16. 16. Seminal Case on Student Privacy: ! New Jersey v. TLO
  17. 17. Recent Cases: ! G.C. v. Owensboro Public Schools (2013) ! N.N. v. Tunkhannock Area School Dist. (2011) ! Mendoza v. Klein Ind. Sch. Dist. (2011) ! ! ! ! ! ! !
  18. 18. Scenario #5: Using Webcams or Other Means to Take Photos of Students, Especially if the Device Goes Off-Campus.
  19. 19. Relevant Case: ! Robbins ex. rel Robbins v. Lower Merion School District (2010) ! ! ! ! ! ! !
  20. 20. ! “LMSD is enjoined from accessing or reviewing any student-created files contained on student laptops (including but not limited to documents, e-mails, instant messaging records, photographs, Internet usage logs, and Web browsing histories) for any reason except as permitted by the policies and regulations contemplated by paragraph 7 of this Order or otherwise pursuant to a signed consent form that clearly and conspicuously sets forth the ability of LMSD to access or review such files.” ! ! ! !
  21. 21. Scenario #6: Circumventing FERPA.
  22. 22. Example: ! FERPA changes that allow for sharing students' personal information with other state officials and private entities for a broad spectrum of activities without the consent of parents. ! May just be the beginning of these types of proposals.
  23. 23. Scenario #7: Parent Dissemination of User Generated Content.
  24. 24. Social Media Amplifies Broadcast Potential ! Policies should be in place for parents taking photos with smartphones and sharing on social networks. ! Consider the implication for children in situations where parents may have protective or other restraining orders.
  25. 25. Parent & Staff Education ! You may think it’s common sense, but write it down and share it with parents and staff members.
  26. 26. The Fourth Amendment When Does It Apply
  27. 27. Distinguishing Fourth Amendment from privacy in the civil sense.
  28. 28. The Fourth Amendment could apply when you are searching private accounts.
  29. 29. The First Amendment When Does It Apply
  30. 30. Tinker v. Des Moines
  31. 31. Long-held precedent, since 1969, that students have wide latitude to criticize to school officials and policies.
  32. 32. kidz online. yes, different rules apply.
  33. 33. Personally Identifiable Information (PII)
  34. 34. “Personally identifiable information” is information that identifies a particular person. “Pii” includes: ! • Full name; • National identification number; • IP address; • Vehicle registration plate number; • Driver’s license number; • Face; • Fingerprints; • Handwriting; • Credit card numbers; • Digital identity; • Date of birth; • Birthplace; and • Genetic information.
  35. 35. Children’s Online Privacy Protection Act ! Requires websites to get parental consent before collecting or sharing info for children under 13. ! Enforced by the Federal Trade Commission. ! Applies to commercial websites and other online services. ! ! !
  36. 36. COPPA Checklist ! 1) Know what qualifies as personal information under the statute. ! 2) Implement a standardized district-wide process for reviewing an online or education technology service provider’s practices for information collection, use and disclosure to ensure they are COPPA compliant. ! 3) Know where students are accessing information. ! 4) Make sure the sites students visit have prominently displayed, clearly stated privacy policies that meet COPPA’s requirements. ! 5) Provide parents with a notice of the websites and online services whose collection the school has consented to on their behalf. ! !
  37. 37. COPPA Checklist ! 6) Inform parents of the procedure for opting out of sharing their child’s personal information. ! 7) Know when schools can or cannot consent on behalf of the parents. ! 8) Ensure the method used to obtain verifiable parental consent is FTC approved, or you can apply to the FTC for pre-approval of a new consent mechanism. ! 9) Implement yearly trainings for school administration and faculty covering the school or district’s COPPA responsibilities and compliance practices. ! 10) Educate students about online safety and privacy issues. !
  38. 38. Avoiding the “Oh, crap.” General Privacy Tips
  39. 39. California ! Privacy Policy Required ! It’s just good sense for schools too. !
  40. 40. Social Media Privacy Act ! Enacted to protect students at universities and employees from the demand of usernames and passwords. ! On the horizon - may be amendments to apply to K-12 schools (exemptions for instances involving bullying investigations)
  41. 41. Protecting Student Records ! Over 8 million student privacy records have been lost from nearly 600 security breaches since 2005.
  42. 42. We just scratched the surface.
  43. 43. ?
  44. 44. Lawyers Gagnier Margossian @gamallp